US courts erode protections for online publishers

Two recent judgments could erode vital protections for web publishers in the US. The rulings could undermine protections from liability for user-posted material previously enjoyed by publishers.

Section 230 of the Communications Decency Act (CDA) has been taken to mean that a content publisher cannot be held responsible for the content provided by someone else to an un-moderated website. Even in the face of evidence that comments posted by users are defamatory, the CDA has shielded publishers from liability for failing to remove the comments.

The law says: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

But accommodation matching service Roommates.com and a sex partner finding website have both lost parts of court cases in recent weeks which experts say could change the interpretation of that law.

A personal profile and nude photograph appeared on AdultFriendFinder, a sex and swingers' website run by the company FriendFinder.

A woman sued the company saying the profile appeared to be of her, though she had not put it there. A New Hampshire federal court sided largely with FriendFinder, agreeing that the CDA provided it with immunity.

"This immunity, as construed by the First Circuit, plainly extends to a number of the acts and omissions alleged in the plaintiff's complaint," said Judge Joseph LaPlante in his ruling.

Judge LaPlante did say, though, that the company could not claim CDA exemption in relation to one of the rights the unnamed woman claimed was violated.

She had claimed her rights of publicity, essentially the right to control your own image and likeness, were violated by the publication of the profile.

The court found that the right of publicity is an intellectual property right. The CDA says publishers cannot claim immunity in relation to intellectual property rights, and so LaPlante said the woman could hold FriendFinder responsible for a breach of that right, if she can prove a breach, and the CDA does not protect FriendFinder.

A second case involved house sharing site Roommates.com. It helps renters find places to live or people to live with based on shared interests, needs, or preferences.

It was sued by the Fair Housing Council of San Fernando Valley, which alleged that the site broke the Fair Housing Act by allowing users to be illegally discriminatory in their accommodation matching.

Roommates.com had said it was not liable for the illegal behaviour of users of its service, and the CDA granted it immunity.

The Court of Appeals for the Ninth Circuit upheld a previous ruling, though, saying the Act did not grant Roommates.com immunity from liability for publishing questionnaires which asked for information which could be used by others to discriminate against them in the offering of housing.

The Fair Housing Council argued that the discrimination resulting from the use of the questionnaires was illegal under the Fair Housing Act.

According to the court ruling, Roommates.com "requires each subscriber to disclose his sex, sexual orientation, and whether he would bring children to a household. Each subscriber must also describe his preferences in roommates with respect to the same three criteria: sex, sexual orientation, and whether they will bring children to the household".

"We note that asking questions certainly can violate the Fair Housing Act and analogous laws in the physical world," said the ruling. "For example, a real estate broker may not inquire as to the race of a prospective buyer, and an employer may not inquire as to the religion of a prospective employee. If such questions are unlawful when posed face-to-face or by telephone, they don't magically become lawful when asked electronically online. The Communications Decency Act was not meant to create a lawless no man's-land on the internet."

"By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information," said the judges. "And section 230 provides immunity only if the interactive computer service does not 'creat[e] or develop[ ]' the information 'in whole or in part'."

The Appeals Court said the immunity contained in the CDA was only available to publishers who took no direct involvement in illegal activity published online.

"A website operator who edits user-created content – such as by correcting spelling, removing obscenity or trimming for length – retains his immunity for any illegality in the user-created content, provided that the edits are unrelated to the illegality," said the court. "However, a website operator who edits in a manner that contributes to the alleged illegality... is directly involved in the alleged illegality and thus not immune."

"Here, Roommate's connection to the discriminatory filtering process is direct and palpable: Roommate designed its search and email systems to limit the listings available to subscribers based on sex, sexual orientation, and presence of children," said the ruling.